Years ago, during a music publishing seminar at which I was a presenter, a songwriter asked, “Why do I even need a music publisher? Couldn’t I just do what a music publisher does, myself?” My simple response was “will you?” It is generally true that of all the players in the music industry, the role of music publisher has one of the lowest thresholds to entry. Indeed, a financially successful music publisher’s stock in trade can sometimes be contained in a single desk drawer. However, that does not mean the job is easy or inexpensive, it just means that there are relatively few required steps for a company (or individual) to accurately call itself a "music publisher." If you are a beginning songwriter with one original song in your catalog and have not assigned any of your rights in that song to someone else, then congratulations, you are technically your own music publisher.
Songwriters frequently receive advice -- solicited or otherwise -- from “concerned” individuals (including fellow writers, family members, friends, rabbis, etc.) that they should never, under any circumstances, “give” their copyrights to anyone. And, because the vast majority of publishing deals involve the assignment of copyright to the publisher, some consider music publishing inherently evil. Of course, it is never a good idea to enter into an agreement with just any publisher who is willing to sign you, simply so you can brag to your family and friends that you signed a publishing deal.
An experienced music publisher should bring to the table at least four attributes that many songwriters lack: (1) an understanding of the music publishing business, including both the publisher’s traditional and developing roles in the larger music industry; (2) a set of established business practices and procedures to effectively manage a catalog and explore exploitation opportunities; (3) existing relationships in the industry; and (4) a relentless drive to both create a successful music publishing business and advance the careers of its signed writers. Notice that the last item does not say “a relentless drive to write great songs” -- that's the songwriter’s job. Writers who do not feel the same level of excitement about building a publishing business as they do about songwriting usually are better served by finding an effective publisher to fill that role.
OK, I know what you’re thinking: “I thought the whole point of this article was to help musicians who decide to ‘do it themselves.’ Why are you telling me I need to have a music publisher?” Well, I’m not telling you that you absolutely have to find a music publisher to achieve success as a songwriter, nor am I trying to discourage you from developing your own music publishing company. However, I do encourage those entrepreneurial writers who make the decision to take on the role of music publisher to learn as much about the business as possible and to seek help when necessary.
We all know the cliché, “knowledge is power,” and It definitely rings true in the music publishing world. Many great books on the subject are available, including Making Music Make Money: An Insider’s Guide to Becoming Your Own Music Publisher by Eric Beall and The Plain & Simple Guide to Music Publishing by Randal Wixen. Also, do not overlook Don Passman’s great, plain-English discussion of music publishing in his authoritative book, All You Need To Know About The Music Business, or Jeff and Todd Brabec’s detailed coverage in their book, Music Money and Success: The Insider’s Guide to Making Money in the Music Business. All of these books are available through most bookstores and online (be sure to confirm that you are purchasing the most recent edition).
As a parting thought, one of the traits that distinguishes successful entrepreneurs in any industry is the ability to recognize one’s own strengths and weaknesses. Most successful entrepreneurs humbly admit that, as mere mortals, they cannot possibly do everything themselves. Delegation of certain tasks to others who are better skilled in particular areas is a reality of the business world. Even seasoned music publishers sometimes enter into administration agreements with other publishing companies that are better able to perform administrative functions, leaving the non-administrative publisher free to concentrate on creative development and seeking exploitation. Finally, although entrepreneurial songwriters certainly can acquire knowledge of the publishing business, established music publishers are already in the game, and they can sometimes open doors that might otherwise remain closed to a songwriter just getting started as a publisher.
Regardless of the path you choose, you owe it to yourself and your music to make an informed decision.
I love bands. I’ve been in bands virtually my entire musical life and I can tell you firsthand, when a band is comprised of individuals who share mutual respect and a passion for their music, the experience can be great. However, almost invariably, when things go bad in a band, they go bad quickly and irreparably. Although nothing can guarantee that a band's members will always get along and keep making beautiful music together (sorry, I couldn’t resist), there are steps that bands can take to foster growth and facilitate a prompt resolution when things do go bad.
One of the most common challenges that new bands encounter is that they typically are so focused on their music that they never get around to discussing how they are to operate. Emerging bands are focused initially on trying to put together their repertoire, and then they start performing and recording and just never seem to get around to formally memorializing their inner workings. Unfortunately, this often leads to confusion or, even worse, mistaken beliefs among band members. Indeed, very successful bands have operated for years with no formal agreement on such critical issues as division of income and ownership of band assets. This is a recipe for disaster that all-too-often catches up with band members eventually.
If a band fails to formally organize as a business entity, it operates as a partnership by default. Although a partnership is a legitimate business structure, it might not be the best form for a particular band. Indeed, many bands choose to formally organize as corporations or limited liability companies (a/k/a "LLCs"). The choice of business structure should always be considered carefully and with the advice of legal counsel. Because of the possibility of conflicts when representing bands, lawyers should advise each band member of his or her right to retain independent counsel. Also, because the various business forms carry different tax consequences, band members should also involve their individual accountants or tax advisers in the decision-making process.
Regardless of the business structure that a band ultimately adopts, its members should discuss among themselves how the band will operate. This discussion should take place very early in a band’s formation and during an official band meeting, not during a band rehearsal. Rehearsals are for rehearsing and band meetings are for conducting band business. I am convinced that if bands would devote even one-tenth of the time they spend in rehearsals for band meetings, many more bands would survive rather than deteriorate because of internal conflicts.
After reaching consensus among members (assuming that all members of the band are to “own” the band), the members should memorialize their agreement in a written and properly executed document. If the band is to operate as a partnership, this will take the form of a “band partnership agreement.” If the band is to operate as a corporation, this information will be contained in a “shareholders’ (or stockholders’) agreement” and if the band is to operate as a limited liability company, the information will be put into an “operating agreement.”
The following is a non-exhaustive list of some of the issues to discuss and include in the written agreement: division of ownership and voting rights; division of income; ownership of master sound recordings; writing credits and copyright ownership for musical compositions written by the band members (if applicable); ownership of trademarks and service marks, including the band name and logo and brands developed for ancillary uses, such as band merchandise; and issues related to departing band members, including the continuation of the band following such a departure, the departing member’s right to use his or her name in association with the band name after departure, and continued payments to the departing member from certain income streams.
As suggested above, in many instances one individual will actually own a band -- directly, or through a separate business entity -- and will hire band members through separate employment or subcontractor agreements. This, of course, raises many other issues that should be discussed with counsel.
The bottom line is that band members need to give their band’s business the consideration and time that it requires. Meet, discuss, agree, memorialize, then focus on making great music with a feeling that all is well with the world -- at least until the drummer and the lead singer’s girlfriend decide to run off together . . . wait, that’s a different story for a different article.
Welcome to The Levine Entertainment Law & Business Monitor. When I set out to create this blog, I asked myself a critical question -- "How many words can I fit in the name without losing readers' attention before they get to my first post?" After weeks of intense research, I settled on six. And after significant internal conflict over whether ampersands really count, I decided to add "the" to the beginning -- an addition that I'm sure you'll agree communicates authoritativeness and class, with just enough pomposity to remind you that it's a blog written by a lawyer.
But seriously, my primary goal was to create a useful source for information about the legal and business aspects of entertainment, delivered in a casual, easily understandable, and frequently irreverent style. I hope you will subscribe and share your suggestions for topics. Thanks for visiting.
P.S., My research also suggested that including cat photos on my website would boost its search engine rankings, so please enjoy this picture of my assistant, Buddy. What he lacks in motivation, he more than makes up for in loyalty.
L. Kevin Levine is the founder of L. Kevin Levine, PLLC (go figure), a boutique entertainment, copyright, trademark, and business law firm in Nashville, Tennessee. A lifelong musician who grew up in his family's music store, it was inevitable that Kevin would build his legal career in entertainment and business.